Symposium on the Current Crisis in Myanmar: Innovating Avenues for Justice and Accountability

[Jennifer Keene-McCann is Fellow, Research and Policy at the Asia Justice Coalition and is based in Melbourne/Naarm, Australia.]

As international lawyers we have many tools at our disposal to assist survivors of international crimes in a way that is meaningful and reflective of their experience. 

Consider the atrocities against the Rohingya. Four years on from the latest iteration of violence, there has been tremendous movement in the international community using the legal avenues available. In these four years, there has been: an international fact-finding mission (‘IFFM’) (actually established in March 2017); the establishment of the International Investigative Mechanism for Myanmar (IIMM), only the third such mechanism to be established to collect information and create casefiles for future prosecution; proceedings in the International Court of Justice (ICJ) regarding violations of the Genocide Convention; and an authorised investigation in the International Criminal Court (ICC). 

However, there are still significant gaps.

The ICJ is limited to findings of State responsibility and then, in this matter, limited to characterising the brutal violence against the Rohingya within the Genocide Convention. The ICC is limited territorially; without Myanmar as a signatory to the Rome Statute, individual criminal responsibility can only be pursued in relation to crimes that took place in part within the territory of Bangladesh. Neither court provides accountability for individuals’ actions within the territory of Myanmar; neither is likely to hold accountable the myriad of corporations potentially complicit in the crimes alleged; neither wholly address the harms continued to be experienced while displaced. (Remembering also that many of the alleged perpetrators then enacted a military coup in February and continue to engage in what may amount to be further international crimes.)

Universal Jurisdiction as Innovation

Enter the Burmese Rohingya Organization UK’s (BROUK) matter in Argentina under universal criminal jurisdiction (discussed elsewhere in this symposium, as well as here and here). 

Not long ago, universal jurisdiction was the ‘new kid on the block’ as a tool to address war crimes and crimes against humanity. However, national prosecutorial use of universal jurisdiction is growing—in 2019, there were 40% more named suspects in universal jurisdiction matters than in just the year before. Its use is still hotly debated including in this most recent report of the UN Secretary General where States, understandably, continue to be concerned about its scope and its potential political use. 

BROUK’s universal jurisdiction case complements the work of the ICC and ICJ by addressing individual criminal responsibility for crimes committed within Myanmar other than genocide. 

And it’s a remarkably creative use of universal jurisdiction.  

Not only is this an instance where a diaspora civil society group is petitioning under universal jurisdiction, but they are petitioning in a Global South forum State whose courts have prior experience in universal jurisdiction. Since 2015, only approximately 12 matters in total were brought or began investigation in the Global South (see Universal Jurisdiction Annual Reviews here). Contrast this with 8 matters in France in 2015 alone. Where international law has largely been a Global North phenomenon, this matter in Argentina challenges the (often valid) critique that the application and enforcement of international law can be a neo-colonial exercise. In a small way it shifts Geneva and the Hague away from the centre of international criminal law’s relevance.

More importantly, this matter opens an avenue for survivors to voice their experiences not addressed by the two other courts. In August for the first time survivors were able to speak by video link in a hearing by the Argentinian Federal Criminal Appeal Court. Although the matter is still in its preliminary stages, the opportunity for survivors to speak is a way to take back some power by those the Human Rights Council referred to as the world’s ‘most persecuted minority.’

Of course, it is debated whether the Argentinian court will take up the case, and still further whether a finding of guilt is likely. But the case is using the tools we have—and using them creatively—to create avenue for potential justice and accountability. 

Exploring Further Avenues

In regards to universal jurisdiction there exist several factors that favour bringing further matters regarding the Rohingya: the international attention (and thus familiarity) with the international legal issues at play regarding the Rohingya; the existence and resources of the IIMM, collecting potential evidence; and the increasing familiarity of prosecutors and judicial actors with universal jurisdiction in the jurisdictions which permit it. 

There are also several barriers. Many fora that permit universal jurisdiction only do so when the alleged perpetrator is present in the Forum State’s territory; international condemnation of the February 2021 coup and the continuing pandemic makes it unlikely the Myanmar military leadership will travel to potential Forum States any time soon. Fora in which alleged perpetrators may travel—particularly to states within Asia—either do not empower courts to hear cases under universal jurisdiction or lack the enabling legislation to incorporate the core international crimes into domestic law. In fact only two Asian States, China and Japan, can really be said to have exercised universal jurisdiction, and then only in relation to piracy. And where prosecutorial discretion permits such considerations both States have their own political reasons to tread very carefully. (See here and here. Not to mention the potential political challenges in my home jurisdiction of Australia, including regarding a recent attempt at private universal jurisdiction prosecution.) 

But these barriers only mean we need to get more creative.

For example, consider the burgeoning of domestic corporate accountability for international crimes. According to the 2019 report by the IFFM, “45 companies and organizations provided the Tatmadaw with USD 6.15 million in financial donations that were solicited in September 2017 by senior Tatmadaw leadership in support of the ‘clearance operations’.” In what jurisdictions—worldwide—might it be possible to bring domestic criminal charges for corporate complicity in crimes against humanity? Just because we’re talking about justice and accountability for international crimes doesn’t mean we only have the criminal law as a relevant tool. So aside from criminal charges in what way might these donations be considered a breach of directors’ duties? 

Likewise, consider potential prosecution for breaches of sanctions on Myanmar. At the time of the February 2021 coup, Australia, Canada, the European Union, the United States, and the United Kingdom all had pre-existing sanctions related to the 2017 atrocities against the Rohingya. While these sanctions clearly didn’t prevent the coup, policing and prosecuting sanction breaches can give sanctions proper ‘teeth’. Such breaches are strict liability offences the US and Australia. What entities might be further held accountable with greater monitoring of corporate structures?

Or consider regional commitments to combat modern slavery or corruption, specifically in Asian States that may otherwise be disinclined towards combatting Rome Statute crimes. To address the continued harm experienced by the Rohingya, displaced and vulnerable to human trafficking, what other legal avenues might be available?

Last but not exhaustively, consider any harms against the Rohingya that could constitute torture. The Convention against Torture (CAT) obligates States to investigate—and then either extradite or prosecute (aut dedere aut judicare)—those within their territory that have engaged in torture (art 6 and art 7(1)). Seven of the 10 ASEAN States have either signed on or acceded to the CAT. Where might it be possible, or useful, to bring domestic prosecution for related torture—or even state responsibility under the CAT?

The Continued Search

This fourth grim anniversary of the 2017 atrocities against the Rohingya is a reminder that neither the international community as a whole, nor we as international lawyers, should be contented with the tools we have. Use them, yes, but continue to hone them and keep searching for better ones.